Bailey v. London Guarantee and Accident Company
| Decision Date | 13 December 1918 |
| Docket Number | 9,549 |
| Citation | 121 N.E. 128,72 Ind.App. 84 |
| Parties | BAILEY v. LONDON GUARANTEE AND ACCIDENT COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied November 7, 1919.
Transfer denied January 6, 1920.
From Marion Superior Court (93,610); Linn D. Hay, Judge.
Action by Ollie E. Bailey against the London Guarantee and Accident Company. From a judgment for defendant, the plaintiff appeals.
Reversed.
George W. Galvin, for appellant.
J. W Fesler, Harvey J. Elam and Howard S. Young, for appellee.
This is an appeal from a judgment in appellee's favor in an action brought by appellant in which he sought to recover damages alleged to have resulted from fraud practiced upon him by appellee.
The complaint is lengthy and it will be sufficient for the purposes of the questions presented by the appeal to indicate its general scope and tenor. It proceeds upon the theory that appellant, on April 8, 1907, while in the employ of the Indianapolis Abattoir Company, as a helper on one of its wagons engaged in the delivery of meats in the city of Indianapolis, was kicked and injured by a fractious and dangerous horse, carelessly and negligently furnished and used by said company, without any warning to appellant or any knowledge on his part of its said dangerous character and habits; that by such kick appellant received a broken leg and other injuries, on account of which he suffered great pain, etc., all to his damage, etc.; that for such damages he had a good and valid cause of action against the Abattoir company; that appellee is an insurance company, and as such had issued to the Abattoir company a policy of insurance, indemnifying it against loss growing out of injuries to its employes; that by the terms of said policy appellee had undertaken and agreed to defend all actions for personal injuries brought against the Abattoir company by any of its employes, but withheld from such company, and reserved to itself, all rights in the matter, control and settlement of claims and the incurring of expenses connected therewith growing out of said injuries, giving, however, to said company the right to provide at appellee's expense at the time of the accident "such immediate surgical relief as is imperative"; that said policy provided that in case of accident and injury to one of its employes, the Abattoir company should give immediate notice thereof to appellee; that pursuant to this provision of the policy appellee was given immediate notice of appellant's injury; that at appellee's instance and for and on its behalf, the Abattoir company employed one Emanuel H. Gebauer, a physician and surgeon of Indianapolis, who took charge and control of appellant and undertook the care and treatment of his injuries for and on behalf of appellee; that from and after the accident appellee took complete charge and control of said case and assumed to act for the Abattoir company; that after being so treated by said doctor for said injuries for some time appellant, in August, 1907, was induced by appellee through the false and fraudulent representations of its said physician and surgeon to settle with said Abattoir company and execute to it a release, purporting to be in full settlement for his said injuries, appellant, however, at the time believing that he was merely receipting for a sum in gross that would cover his wages during future disability; that, after said settlement, appellant was required to submit to a surgical operation in which his leg was amputated, and he then learned the true nature and condition of his injuries and brought suit against the Abattoir company for damages resulting therefrom; that in the trial of said action against the Abattoir company said release was successfully interposed and used as a defense to appellant's cause of action. There are also averments to the effect that appellant had confidence in said doctor, and relied on his representations and by them was induced to make said settlement; that he continued to treat appellant until in February, 1908, when he, appellant, consulted other surgeons, and then for the first time learned that there never had been any union of the bones of his leg.
To this complaint there was an answer in general denial, and an affirmative paragraph setting up the six-year statute of limitations. There was a reply to the latter answer in general denial, and also a special reply setting up facts showing concealment by appellee of appellant's cause of action on account of which appellant was unable to ascertain the facts giving rise thereto until a time within said statutory period.
On the issues thus formed the case was submitted to a jury for trial. At the close of appellant's evidence, the court, on appellee's motion, instructed the jury to return a verdict for appellee, which was done and judgment rendered accordingly. A motion for a new trial was overruled. This ruling is assigned as error, and relied on for reversal. While said motion contains several grounds, they in effect present the same question, viz., the correctness of the action of the trial court in giving a peremptory instruction in appellee's favor.
We deem it unnecessary to enter into any lengthy discussion of the question, when such action is justified by the trial court. This court has given this question consideration and collected and cited the authorities pertinent to its determination in the case of Lyons v. City of New Albany (1913), 54 Ind.App. 416, 103 N.E. 20. The court in that case announced as its conclusion, as to the effect of the authorities pertinent to said question, that the trial court "should not have sustained such motion if, after eliminating all evidence favorable to appellee, there was any evidence remaining which, with its legitimate inferences, would have been sufficient to support each of the facts essential to a verdict for appellant if one had been returned in her favor."
Appellee in effect concedes the law to be as stated, and in recognition thereof asserts under its propositions and points, in substance, as follows: (1) That there is a complete failure to show that appellee was in any way responsible or liable for the statements set out in the complaint as fraudulent. (2, 3) That the evidence fails to show false statements within the meaning of the law governing such cases. (4) That the evidence shows that appellant had ample opportunity to discover the facts as to his condition and injury, and hence cannot successfully claim to have been defrauded. (5) That there was no evidence to show that appellee expected appellant to rely on any representation made by Dr. Gebauer, and that the absence of such evidence is fatal to appellant's cause. (6) The evidence fails to show that appellant relied on the statements alleged to have been false. (7) That appellant failed to make a sufficient showing that he suffered any damage because of the alleged fraud practiced on him. (8) The evidence shows that appellant's action was barred by the Statute of Limitations.
It is the duty of this court to search the record to affirm the judgment below, and hence if the action of the trial court in giving said instruction can be upheld upon either one or more of the grounds or propositions, supra, it will be our duty to affirm its judgment.
As pertinent and applicable to an intelligent disposition of said propositions, we will now indicate some of the evidence which we think favorable to appellant. The evidence shows that appellant was injured April 8, 1907. The policy read in evidence provides, among other things, for liability on account of an accident resulting in bodily injury or death to one person in a sum not exceeding $ 5,000; after which are provisions as follows:
Notice of accident and claim.
"* * * C. Upon the occurrence of an accident the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the Company's Head Office, or to the agent who has countersigned this policy. If a claim is made on account of such accident, the assured shall give like notice thereof, with full particulars. The assured shall render to the company all co-operation and assistance in his power in the protection of his interests.
When assured is sued.
Appellant also introduced in evidence a statement, bearing date June 24, 1907, held by the Indianapolis Abattoir Company, rendered by Dr. Gebauer for professional services rendered to date $ 45. This statement contains the following memoranda at the close thereof.
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Bailey v. London Guarantee & Accident Co.
... 72 Ind.App. 84 121 N.E. 128 BAILEY v. LONDON GUARANTEE & ACCIDENT CO. No. 9459. Appellate Court of Indiana. Dec. 13, 1918 ... Appeal from Superior Court, Marion County; Linn D. Hay, Judge. Action by Ollie E. Bailey against the London Guarantee & Accident Company. Judgment for defendant, and plaintiff appeals. Reversed, with instructions. George W. Galvin, of Indianapolis, for appellant. J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellee. HOTTEL, J. This is an appeal from a judgment in appellee's favor in an action brought ... ...